Calcutta High Court (Appellete Side)
State Of West Bengal And Ors vs Satyawanti Devi Fomra And Ors on 7 March, 2012
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present : The Hon'ble Justice Pinaki Chandra Ghose
and
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
C.O.T. 1423 Of 1995
F.A. 151 of 1998
State of West Bengal and Ors.
vs.
Satyawanti Devi Fomra and Ors.
For the appellant : Mr. Anit Kumar Rakshit
Mr. N. Ghosh Dastidar
For the respondent/ : Mr. Bimal Kumar Chatterjee
Cross-objector Mr. Anupam Acharya
Mr. Rajesh Upadhyay
For C.S.T.C. : Mr. N. C. Bechani
Heard on : 13.12.11 & 08.02.12
Judgement on : 07.03.12
Dr. Mrinal Kanti Chaudhuri, J. :-
In pursuance of notification dated 23.04.1976 issued under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 the possession of premises No.83 and portion of premises No.84, Acharya Jagadish Chandra Bose Road belonging to the cross-objector referring claimant, Sri Munnalal Fomra and others was taken by the State of West Bengal for establishment of a sub-depot of Calcutta Transport Corporation. The total area covering the said notification is 3 2 bighas 16 cottahs 8 chattaks and 1.58 sq. ft. along with structure. Subsequently, by notification published under Section 4(1A) of Act II/48 dated 07.04.1990, the requisitioned property was acquired. The Collector awarded the value of the acquired property @ Rs.72,416/- per cottah. The value of the acquired structure was assessed as Rs.1,72,800/-. The Collector paid rent for the requisitioned property so long the property was under requisition.
Being aggrieved by and dissatisfied with the said amount of award, the referring claimant filed a reference under Section 8 of the said Act. Learned 4th Additional Special L.A. Judge, Alipore allowed the reference case of the cross objector/referring claimant and thereby modified the order of L.A. Collector. Being aggrieved by and dissatisfied with the judgement and order of learned L.A. Judge, State of West Bengal preferred an appeal. At the same time, the referring claimant filed a cross objection. The Division Bench of this Court vide judgement and order dated 3rd March, 2000 dismissed the appeal as well as cross objection.
The referring claimant/cross objector, being aggrieved by the said judgement and order of the Division Bench of this Court moved before Hon'ble Supreme Court by preferring a Civil Appeal bearing No. 2608 of 2001. Hon'ble Supreme Court allowed the appeal and thereby set aside the judgement and order in so far as it relates to the dismissal of the cross objection and remanded the matter to the High Court for disposal of the cross objection on merit in accordance with law after giving opportunities of hearing to the parties.
According to the cross objector, the learned L.A. Judge should have awarded full at the rate claimed by the referring claimant and, therefore, the judgement and decree passed by the learned 4th Additional Court of Special Judge, Alipore refusing to pass an award on the entire claim of the referring claimant is erroneous and liable to be set aside. Further case of the cross objector is that L.A. Judge should have assessed the market value of the 3 acquired land at Rs.4,87,000/- per cottah and learned L.A. Judge should have assessed the value of the structure as Rs. 25 lakhs.
We have carefully heard the submissions of learned counsels of both the parties and also perused the notes of the submission on behalf of the cross- objector.
Learned counsel for the cross-objector has submitted that the valuation of property and structure made by L.A. Collector as well as by the learned L.A. Judge is unjust and inadequate. It is further submitted that the valuation of the acquired land at the relevant time i.e. on 07.04.1990 was Rs.5 lakhs per cottah and value of the acquired structure was Rs.25 lakhs. Moreover the portion of the unacquired land of premises No.84, A.J.C. Bose Road was affected adversely and for that reason referring claimant is entitled to get further award of compensation of the entire unacquired 14 cottah of land.
Learned counsel for the cross-objector has cited decision of law reported in AIR 2003 SC 3698 (State of Maharashtra and Ors. vs. Maimuma Banu and Ors.). In the said decision Hon'ble Court observed that rental compensation is to be paid after taking possession of the land. In the said case, land owners approached the High Court by filing writ petition making grievance that after taking possession of the land, no rental compensation was paid and there was abnormal and unusual delay in making payment. Hon'ble Court in the said decision ordered for payment for rental compensation. Another decision reported in [(2002)2 SCC 605] (Kashiben Bhikabai and Ors. vs. Special Land Acquisition Officer and Anr.) was also cited. It was held that once consideration in comparable sale is accepted as the prevailing price for a particular period, such consideration should not be reduced for the purpose of calculating compensation only because it includes an intermediary's profit. Similarly, another decision reported in (2007)2 SCC 341 (Patel Joitaram Kalidas and Ors. vs. Spl. Land Acquisition Officer and Anr.) has also been cited. In the said case Hon'ble Apex 4 Court held for payment of interest granted on amount envisaged under Section 23(1-A) and (2) following the decision of Supreme Court in Prem Nath Kapur vs. National Fertilizers Corporation of India Limited [(1996)2 SCC 71]. Therefore, Hon'ble Apex Court held that the appellant is entitled to interest on additional amount payable under Section 23(1-A) and solatium payable under Section 23(2) of the Act. Moreover, grant of interest on this amount is consequential and automatic and involves only arithmetical calculation and not application of judicial mind or exercise of judicial discretion.
The cross-objector examined P.W.1 Sri Rabindralal Sinha, a registered valuer who was engaged by the referring claimant in order to ascertain the market value of building and structure as on 07.04.1990. On the other hand, State of West Bengal examined one witness Sri Nirmal Kumar Mitra, a surveyor and valuer attached to the office of the First L.A. Collector, Calcutta. It appears from the report of the valuer as well as from the evidence of P.W.1 i.e. Rabindralal Sinha, a valuer engaged by the referring claimant that he adopted two methods to ascertain the value of the acquired land. He relied upon the land value of deed of the premises No.172/29, A.J.C. Bose Roa (Ext.2A). At the same time, D.W.1 - valuer of the State of West Bengal also relied upon sale proceeds of the said deed for ascertainment of the value of the property and said deed is Ext. 2(b). It was executed on 05.12.1984. The value of 1 cottah of land in the sale deed was Rs.55,017/-. The property is situated on 8 ft. wide blind common passage at Beniapukur Road. P.W.1 assessed the value of acquired land at Rs.2,20,068/- per cottah as on 05.12.1984 on the ground that the acquired property situated on a 120 ft. wide principal thoroughfare of A.J.C. Bose Road and, therefore, it is four times of the price of the land situated on 8 ft. blind common passage. P.W.1 thereafter gave appreciation of 106% on Rs. 2,20,068/-. The sale deed i.e. Ext.2 (a) or Ext. 2(b) was executed on 05.12.1984 whereas the acquisition was made on 07.04.1990. The time factor for the 5 years 4 months should be taken into consideration. The value of the property has been increased @ 20% p.a. by such addition of 106% on Rs.2,20,068/- per cottah. Therefore, 5 P.W.1 assessed the market value of the land as on 07.04.1990 as Rs.4,53,340/- on average. Furthermore, P.W.1 assessed the valuation on the ground that there is second front of Durgacharan Road of the back of the acquired land by which he has given appreciation of two and half percentage raising the value as Rs.4,64,673/-.
P.W.1 has also adopted another method i.e. on the basis of F.A.R. (Floor Area Ratio) which was introduced in the building rules of Calcutta Municipal Corporation in 1977 to determine the total covered area of building in all the floors. This P.W.1 has taken F.A.R. method in comparison with the land in the deed of Ext.2(a) as 4:5:1. He has assessed the value of the acquired land as within Rs.2,47,576/- per cottah (55,017 x 4.5). He adopted F.A.R. method having regard to the vast area of the acquired land and the location of the property of 120 ft. wide A.J.C. Bose Road. This P.W.1 further added 20% p.a. escalation of the acquired land as on 07.04.1990. He accordingly assessed the value of the land as on 07.04.1990 as Rs.5,10,060/- per cottah. He has also taken into consideration the time factor i.e. 5 years 4 months. Furthermore, he has taken the mean of those values and held that the market value of the acquired property was Rs.4,87,000/- on 07.04.1990.
On the other hand, State of West Bengal has examined its valuer Sri Nirmal Kumar Mitra as D.W.1. He is a surveyor and valuer attached to the first L.A. Collector. He visited the acquired property and prepared valuation report of the acquired property. He assessed the market value of the acquired land at Rs.1,34,103/- per cottah on the basis of belting method and thereafter he multiplied this amount with .6 which is coefficient . Therefore, the average value of the land per cottah stands as Rs.80,462/-. He again deducted 10% from the amount due to largeness of the acquired property. After deduction the net average value stands Rs.72,416/- per cottah. His report reveals that he assessed value of the acquired property as Rs.96,555/- per cottah. He allowed an escalation or appreciation @ 5% p.a. on account of time factor of 5 years and 4 6 months. But his cross-examination reveals that escalation or appreciation of the land value is on account of time factor. He further allowed cent percent appreciation on the sale deed on the Ext. 'B' because said land is on 8 ft. common passage. He could not advance any explanation as to how did he arrive at 5% appreciation of the land value on account of time factor. He further allowed an appreciation of 25% on the Ext. 'B'. Since acquired property is situated in a better locality with commercial importance and higher potentiality, he valued the acquired property on 07.04.1990 as Rs.1,70,805/- per cottah. Due to largeness of acquired area he took coefficient at .6 of such basic value of Rs.1,78,805/- per cottah. He arrived at average value of the acquired land as Rs.1,07,283/- per cottah. From this amount he deducted 10% due to largeness of the area and average value of the acquired land as assessed by D.W.1 is Rs.96,555/- as on 07.04.1990.
On the other hand, learned L.A. Collector sliced down the value from Rs.96,555/- to Rs.72,416/- per cottah but this has no basis and reason. There is no clear explanation as to why learned L.A. Collector assessed the value of the land @ Rs.72,416/- per cottah. Therefore, the valuation of the learned L.A. Collector is shockingly low.
Learned L.A. Judge has also relied upon the sale deed of the property situated at 172/29 A.J.C. Bose Road. The valuation of the said land of the deed is Rs.55,017/- per cottah. It is situated on 8 ft. wide blind land and about 900 metre away from the acquired property. Learned L.A. Judge held that the value of the acquired property must be 200% (double) of the plot on 172/29, A.J.C. Bose Road which was executed on 05.12.1984. The value of the acquired property thus comes to Rs.1,65,051/-. Further L.A. Judge added 12% p.a. for the time factor of 5 years 4 months and thus the amount stands at Rs.1,03,950/-. Therefore, total value of the acquired land per cottah comes to Rs.2,68,950/- as on 07.04.1990. With regards to the valuation as assessed by P.W.1 we find that the valuer of referring claimant/cross-objector also relied 7 upon the valuation of the land of plot No.172/29, A.J.C. Bose Road executed on 05.12.1984. Government valuer examined as D.W.1 also relied upon the said deed and learned L.A. Judge also relied upon the value of said deed as prevailing price of land. The compensation amount of acquired land cannot be reduced from the land value of said deed. Considering the potentiality of the acquired land on point of time and situation and location being situated on 120 ft. wide principal thoroughfare of A.J.C. Bose Road and also in comparison with the land situated at 172/29, A.J.C. Bose Road, we are of the opinion that the value of the acquired land must be more than what L.A. Judge assessed. We hold that the value of acquired land must be Rs.3,50,000/- per cottah as on 07.04.1990 including time factor of five years and four months. The cross-objector is entitled to the said amount as value of the land as on 07.04.1990.
With regards to the valuation of structure D.W.1 assessed the value of structure as Rs.3,01,924/- for which he relied upon P.W.D Schedule rate for the year 1990 but the learned L.A. Collector valued the acquired structure as Rs.1,72,100/-. Therefore, learned L.A. Judge is justified in not accepting the valuation of learned L.A. Collector. On the other hand, the valuer of cross- objector assessed valuation of structure is Rs.3,54,825/- which is akin to assessment of D.W.1. Therefore, we are of considered view that value of structure must be Rs.3,54,825/-. The cross-objector is entitled to get the said amount as value of structure.
With regards to some portion of premises No.84, A.J.C. Bose Road which has not been acquired, it appears from the evidence of D.W.1 that the value of the said unacquired land has become affected adversely due to the acquisition of the remaining portion. Major portion of the unacquired land is covered with building. Only 4 cottahs of vacant land is there. The frontage of the unacquired property has been reduced to 5-7 ft. from 29 ft. The evidence of D.W.1 reveals that the land having frontage of 29 ft. is more valuable than having frontage of 5- 7 ft. Learned L.A. Judge is justified in holding that the value of unacquired 8 portion of premises No.84 of A.J.C. Bose Road has been adversely affected due to the acquisition of the remaining portion. Therefore, cross-objector/referring claimant is entitled to get compensation of the remaining 14 cottah unacquired land of plot No.84, A.J.C. Bose Road. Learned L.A. Judge is not justified giving compensation to 4 cottah of vacant unacquired land instead of 14 cottah.
We have carefully scrutinise the valuation report of both P.W.1 and D.W.1 and the valuation of learned L.A. Collector and learned L.A. Judge. On a close scrutiny of materials on record we find the valuation of the acquired land comes to Rs.3,50,000/- per cottah. The valuation of the structure stands Rs.3,54,8825/-. In absence of any other materials we are constrained to hold that the valuation of land and structure as assessed above is quite sufficient and adequate. Therefore, valuation of the acquired land per cottah is Rs.3,50,000/- and that of structure is Rs.3,54,825/-. We also award 75% of the land value per cottah for 14 cottah of unacquired property in premises No.84, A.J.C. Bose Road. Learned L.A. Judge also awarded solatium @ 30% on the market value of the acquired land and structure less the amount already paid by the L.A. Collector. This is quite justified.
Learned L.A. Judge is justified in awarding interest @ 9% p.a. from 07.04.1990 for one year and thereafter 15% p.a. till payment less the amount paid on the market value of the acquired land including S.A. thereon.
We also award 9% p.a. over the amount awarded for injurious affection of the unacquired portion of 14 cottahs of land from 07.04.1990 for one year and thereafter 15% p.a. till payment.
Learned L.A. Judge awarded R.C. @ 9% p.a. from the date of taking possession of the premises i.e. from 26.04.1976 to 06.04.1990 less the amount already paid by the L.A. Collector. This is also sufficient and justified.
9In view of Section 23(1-A) the cross-objectors are also entitled to get 12% p.a. on such market value for the period from the date of taking possession till payment of award.
After considering all the aspect of the matter including the evidence and documents and judgement of the learned L.A. Judge we find that the valuation of land and structure and other consequential benefits awarded above are quite sufficient and adequate. We do not find any reasonable ground to enhance further compensation as claimed by cross-objector/referring claimant.
The judgement and order of learned L.A. Judge is accordingly modified.
The cross appeal is, therefore, allowed in part on the above reason.
Learned L.A. Collector is directed to pay the aforesaid amount within four months from the date of communication of this order failing which the referring claimants/cross-objectors will be at liberty to have their dues realised in accordance with law.
Photostat certified copy of the judgement and order, if applied for, be made over to the parties on usual terms.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Pinaki Chandra Ghose, J.)